CAPTURED COURTS OCTOBER 2020 PREPARED BY: Senator Ron Wyden Senator Tom Udall Senator Debbie Stabenow DPCC Chairwoman Senator Sheldon Whitehouse Senator Amy Klobuchar Senator Ben Cardin Senator Chris Coons Senator Jeff Merkley Senator Sherrod Brown Senator Richard Blumenthal WHAT’S AT STAKE: DEMOCRACY How Captured Courts Support the Republican Party’s Assault on American Democracy
CAPTURED COURTS
OCTOBER 2020
PREPARED BY: Senator Ron Wyden Senator Tom Udall Senator Debbie
Stabenow DPCC Chairwoman Senator Sheldon Whitehouse Senator Amy
Klobuchar Senator Ben Cardin Senator Chris Coons Senator Jeff
Merkley Senator Sherrod Brown Senator Richard Blumenthal
WHAT’S AT STAKE: DEMOCRACY
How Captured Courts Support the Republican Party’s Assault on
American
Democracy
Ruth Bader Ginsburg Throughout her career, Justice Ruth Bader
Ginsburg worked tirelessly to bend the arc of the moral universe
toward justice. As a litigator and co-founder of the Women’s Rights
Project of the American Civil Liberties Union, she pushed the
Supreme Court to recognize that the 14th Amendment forbade sex
discrimination. When she joined first the D.C. Circuit and then the
Supreme Court, she was known for building consensus among judges
across the political spectrum. Ginsburg was consistently a powerful
voice for marginalized groups, describing her dissents as
“appealing to the intelligence of a future day.”
In her emphatic dissent in Shelby County v. Holder, she objected to
the majority’s paring back of Voting Rights Act protections,
famously writing that “[t]hrowing out preclearance when it has
worked and is continuing to work to stop discriminatory changes is
like throwing away your umbrella in a rainstorm because you are not
getting wet.”
Justice Ginsburg recognized the importance of the Court as a
bulwark against powerful anti-democratic forces in this country. As
the Court shifted rightward under the influence of corporate and
special interests, her dissents pulled back the curtain on how the
Court privileged the powerful at the expense of the powerless. She
has said that her “impossible dream” was to have Citizens United v.
FEC (a case that removed the cap on external campaign financing,
and in which she joined a forceful dissent) overruled. She sought
to remedy the injustices advanced by partisan gerrymandering (Rucho
v. Common Cause) and protect the right to vote for all Americans
(Husted v. A. Philip Randolph Institute). Her absence on the Court
will be felt for years to come.
Justice Ginsburg’s death places the legitimacy of the Court and our
political process in jeopardy. Little more than an hour after
Ginsburg’s passing, Mitch McConnell announced that the Senate would
vote on Trump’s nominee for her replacement. For Senate
Republicans, it hardly matters whom Trump selected. The wealthy
special interests that fund the Republican Party have made sure
that whomever President Trump nominates will be a reliable vote to
advantage the rich and powerful over the most vulnerable
populations that Justice Ginsburg worked to protect, doing
irreparable structural damage to our system of government in the
process. Her legacy is at risk and with it the integrity of our
democracy for generations to come.
2
• Recent Republican-appointed justices’ Supreme Court rulings have
opened the door for unlimited political spending by special
interests, making it harder for the voices of Americans to be
heard.
• These decisions have undercut free and fair elections and led to
voter suppression.
• Outside conservative groups, many of which are not required to
disclose their donors, have spent millions of dollars to advance
their policy agendas before the courts. A number of these same
groups are now working to undermine access to the ballot in the
2020 election.
• President Trump’s judicial nominees, as well as judges nominated
by previous Republican presidents, are responsible for the vast
majority of decisions that have resulted in voter suppression and
made it nearly impossible to regulate political spending.
How We Got Here For more than 30 years – starting with the passage
of the Federal Election Campaign Act (FECA) in 1971 and ending with
the passage of Honest Leadership and Open Government Act in 2007 –
Congress passed bipartisan legislation to increase transparency and
regulate the role of money in our political system.1
FECA was originally enacted in 1971 to require candidates running
in federal elections to adhere to more stringent disclosure
requirements.2 When those public reports documented “financial
abuses” in federal elections, Congress took additional action.3
FECA was amended several times, leading to stronger contribution
regulations and, in 1975, the creation of the Federal Election
Commission (FEC), which has a mission “[t]o protect the integrity
of the federal campaign finance process by providing transparency
and fairly enforcing and administering federal campaign finance
laws.”
Shortly after the FEC’s first Commissioners were sworn in, the
Supreme Court agreed
3
to hear the Buckley v. Valeo case, which raised the question of
whether the campaign finance regulations passed in FECA violate the
First Amendment.4 The Court upheld regulations that set
contribution limits, noting that they improve the “integrity of our
system of representative democracy” by guarding against corruption
and the appearance of impropriety.5
However, the Court also found that campaign contributions and
expenditures pose a “substantial restraint on speech and
association” and held that limits on such spending are
unconstitutional.6 Some scholars have noted that under this
interpretation of the First Amendment, the voices of those who
already hold significant power are amplified and those who lack
political power are further disadvantaged.7 Current FEC
Commissioner Ellen Weintraub has called this ruling by the Court “a
very wrong turn” that has allowed “billionaires and corporations”
to have an outsized influence in our elections and paved the way to
sustained deregulation of our campaign finance system.8
In addition to taking action on regulating “hard money” in the
early 1990s, attention in Congress turned to the problems
associated with “soft money,” which is unregulated money donated to
political campaigns and PACs. Beginning in 1995, Senators John
McCain (R-AZ) and Russ Feingold (D-WI) began a bipartisan push for
additional regulations on soft money.9 Their work led to passage of
the Bipartisan Campaign Reform Act (also known as McCain-Feingold,
or BCRA) with bipartisan support in both chambers. This landmark
legislation, which was signed into law in 2002, bans national party
committees and federal candidates from raising or spending soft
money.10
In recent years, Congress has struggled to find bipartisan
agreement on campaign finance reform. In 2007, the Honest
Leadership and Open Government Act was signed into law, which
increased the disclosure of campaign spending by lobbyists.11 No
significant campaign finance laws have been enacted since
then.
Meanwhile, for decades, the Republican-appointed majority on the
Supreme Court has repeatedly overturned bipartisan campaign finance
laws limiting money in politics. These decisions opened the
floodgates for unlimited corporate political spending and allowed
anonymous deep-pocketed interests to dominate the free and fair
exchange of ideas in our democracy.
The Supreme Court’s 2010 Citizens
4
United decision arguably did the most damage to our nation’s
efforts to keep special interest money out of politics. In that
case, five justices ruled that the First Amendment allows unlimited
political spending by corporate and special interests, which led to
the creation of super PACs and new nonprofit groups that are not
required to disclose their donors. These “dark money” groups are
allowed to spend significant amounts of undisclosed money as long
as their campaign activities are not the “primary purpose” of their
organization.12 Their massive spending drowns out the voices of
voters and advances policy outcomes that favor large corporations
and special interests.
Despite more than a decade of well-reported violations of Citizens
United’s “transparency” and “independence” predicates, the Court
has yet to police its boundaries. In fact, the majority’s opinion
did not acknowledge that the power to spend unlimited money in
politics also means having the power to make promises or threats
regarding such expenditures, which could themselves be
corrupting.
Since Citizens United became the law of the land in 2010, dark
money groups have spent roughly $1 billion in federal and state
elections.13 Election expenditures from undisclosed sources topped
$312 million in the 2012 general election alone.14 For example, the
American Action Network, a 501(c)(4) “social welfare” organization,
raised $41.9 million in one year, $24.6 million of which came from
a single anonymous donor.15
It’s not just Citizens United. In three other cases – FEC v.
Wisconsin Right to Life,16 Davis v. FEC,17 and McCutcheon v. FEC18
– a 5-4 Supreme Court majority made up of appointees from
Republican presidents undermined the Court’s own precedents
limiting corporate spending in elections and the historic
Bipartisan Campaign Reform Act of 2002, which was an effort by both
Democrats and Republicans to address the problem of money in
elections by drawing on their own experiences as candidates.
The first BCRA challenge that made it to the Supreme Court,
McConnell v. FEC, failed in 2003; the Supreme Court upheld the
central provisions of the law – restrictions on soft money and
issue ads – deferring to bipartisan congressional findings.19
Subsequent BCRA challenges were more successful. What changed? Not
the law
5
or the facts, but the justices on the Court. After Chief Justice
Roberts and Justice Alito were confirmed, the Supreme Court’s new
majority struck down laws banning corporations from running
pre-election advertisements about candidates (Wisconsin Right to
Life), leveling the playing field between wealthy self-funded
candidates and their challengers (Davis), corporate spending
(Citizens United), and aggregate- contribution limits (McCutcheon).
Along the way, the Court, by the same 5-4 majority, also overturned
state campaign finance laws.20
During this same time period, the Supreme Court has undermined
American democracy by steadily dismantling voting rights
protections, allowing states to make it harder for many Americans –
especially Black and Latino Americans – to vote. When the
Republican-appointed majority on the Court gutted the Voting Rights
Act in 2013, it opened the door to Republican-backed voter
suppression and disenfranchisement tactics, such as voter ID laws,
voter-list purges, vote-by-mail prohibitions, and partisan
gerrymandering. There is clear evidence, including judicial
findings, that such tactics are discriminatory and designed to
suppress minority voting.
Racial discrimination in voting is prohibited by the Fifteenth
Amendment, which gives Congress broad power to enforce this
prohibition by “appropriate legislation.”21 Congress did just that
in the landmark Voting Rights Act of 1965.22 Congress later
reauthorized the Voting Rights Act in 200623 with landslide votes
in both the House (390-22) and Senate (98-0).24 That
reauthorization was buttressed with scores of hearings and expert
reports, culminating in a factual record spanning 15,000
pages.25,26
Those seeking to restrict the right to vote then brought their
cases to the Supreme Court, asking it to repudiate the bipartisan
work of the democratically accountable Congress. Notably, this
effort was aided by dark-money groups, and it succeeded. As a
result, in Shelby County v. Holder, five Republican-appointed
justices set their sights on the “preclearance” requirements of the
newly reauthorized Voting Rights Act, which required jurisdictions
with proven histories of racially motivated voter suppression to
seek court or Department of Justice approval before changing voting
laws. The five-justice majority dismissed Congress’s exhaustive
findings of fact, substituting its own factual determinations about
race and politics, all but declaring racism – and racially
motivated voter suppression – a relic of the past.27 They then
eliminated the Voting Rights Act’s preclearance requirement. As
Justice Ginsburg argued in dissent, “[t]hrowing out preclearance
when it has worked and is continuing to work to stop discriminatory
changes is like throwing away your umbrella in a rainstorm because
you are not getting wet.”28 While the Court has found that racial
gerrymandering can violate the Fourteenth Amendment’s Equal
Protection Clause29 and has occasionally crossed ideological lines
in such cases, their impact has been
6
overshadowed by the devastating repercussions of the Shelby County
decision.30
With the legal protections in the Voting Rights Act removed,
Republican groups began to encourage states to pass laws that make
voting harder. Studies have shown that Democrats benefit from high
turnout31 and that nonvoters tend to lean slightly Democratic.32
One Republican political operative told a private group of
influential conservative donors last fall that their party’s
electoral strategy “traditionally” relies on “suppressing votes.”
As Justice Ginsburg so rightly predicted, without the preclearance
umbrella, Black and Latino Americans’ voting rights got soaked.
Shortly after the decision, Republican state legislatures passed
voting restrictions that decreased access to voting for minorities.
As one federal appellate court found, the North Carolina
Legislature “targeted African Americans with almost surgical
precision.”33 The Supreme Court’s decision in Shelby County was
instrumental to that strategy.
We recently saw the effects of the Shelby County decision – and
Donald Trump’s extreme judges – in Florida. In 2018, Florida voters
overwhelmingly voted to restore voting rights to formerly
incarcerated individuals. But Florida Republicans sought to undo
the will of the voters by passing a new poll tax, requiring that
Floridians pay off all fees and fines associated with past felony
convictions before having their voting rights restored. A U.S.
District Judge ruled that the poll tax violated the Constitution by
conditioning the right to vote on wealth, but the 11th Circuit
reversed that ruling, and the U.S. Supreme Court declined to step
in. As a result, more than one million Floridians will be
disenfranchised in 2020.34
7
In another racial gerrymandering case considered after Shelby,
Abbott v. Perez, the plaintiffs alleged that Republican-drawn
congressional and state legislative districts in Texas
discriminated against Black and Latino voters.35 After a trial, a
federal court in Texas agreed that the maps were intentionally
discriminatory, but five Republican- appointed justices on the
Supreme Court disagreed. Despite the lower court’s clear factual
findings, the 5-4 Supreme Court majority upheld the gerrymandered
maps and declared that the Republican-controlled Texas State
Legislature – despite its record of race-based voter discrimination
– was entitled to a “presumption of good faith.” In dissent,
Justice Sotomayor wrote that the majority’s “disregard of both
precedent and fact comes at serious costs to our democracy. It
means that, after years of litigation and undeniable proof of
intentional discrimination, minority voters in Texas . . . will
continue to be underrepresented in the political process.”36
Allowing racial discrimination is not the only way the Supreme
Court has made it harder for Americans to vote. In Husted v. A.
Philip Randolph Institute, the five Republican-appointed justices
ruled that Ohio could purge voters from the voting rolls if they
chose not to exercise their right to vote and failed to respond to
a notice in the mail.37 Congress had passed the National Voter
Registration Act (NVRA) to “enhance the participation of eligible
citizens as voters in elections for Federal office,” recognizing
that voting rights are “fundamental” and that “discriminatory and
unfair registration laws and procedures can . . .
disproportionately harm voter participation by various groups,
including racial minorities.”38 Congress made it clear at the time
that state laws “shall not result in the removal of the name of any
person from the official list of voters registered to vote in an
election for Federal office by reason of the person’s failure to
vote.”39 Yet, the five Republican-appointed justices on the Supreme
Court later disagreed with Congress and upheld the voter purge.
This decision has led states to continue massive purges of voter
rolls, including in Georgia40 and Wisconsin.41 Conservative
dark-money groups are using the decision to launch “an aggressive
campaign to force states” to purge their voter rolls.42
Cases like Shelby County, Abbott, and Husted show how a bare
majority of the Court set the stage for Republican efforts to
strike down or undermine laws protecting the right to vote and
ultimately opened the door to partisan gerrymandering.
Partisan
8
“[the majority’s] disregard of both precedent and fact comes at
serious
costs to our democracy. It means that, after
years of litigation and undeniable proof of
intentional discrimination, minority voters in Texas . . . will
continue to be
underrepresented in the political process.” - Justice
Sotomayor
gerrymandering undermines the principle of representative
democracy, permitting a party in power to keep that power by
manipulating district lines.
Take Wisconsin: In 2018, Democrats “won 53 percent of the vote and
only 36 percent of the seats” in the state legislature.43 This
partisan gerrymandering resulted from Wisconsin Republicans’
post-2010 efforts to “draw[] new legislative district boundaries to
ensure that they’d never cede [legislative] control again.”44 Their
goal was to sequester Democratic-leaning voters in a few districts
so that the remaining districts would be left with Republican
majorities.
Like voter identification laws and state voter-roll purges,
partisan gerrymandering is a political ploy that courts are
positioned to prevent. But in 2019, in Rucho v. Common Cause, the
Court’s Republican appointees instead stripped federal judges of
their power to stop partisan gerrymandering.45 As Justice Kagan
wrote in dissent, partisan gerrymandering “imperil[s] our system of
government. Part of the Court’s role in that system is to defend
its foundations. None is more important than free and fair
elections.”46
Supreme Complicity
Since 2005, the Republican-appointed majority of the Supreme Court
has refused to check well- established political strategies to
suppress voting rights and flood elections with unlimited money.
Here are just a few examples:
• Gutting the Voting Rights Act to greenlight voter suppression
(Shelby County)
• Upholding discriminatory voter identification laws (Crawford v.
Marion County Elections Board)
• Rubber-stamping partisan gerrymandering (Rucho v. Common
Cause)
• Approving indiscriminate voter purges (Husted v. A. Phillip
Randolph Institute)
• Flooding elections with unlimited corporate money (Citizens
United)
Who Is Behind It The Supreme Court’s campaign finance and voting
rights decisions are not supported by its precedents. Instead, they
represent the adoption of novel legal theories by
Republican-appointed judges and justices whose nominations were
advanced by special interests. At the Supreme Court, the 5-4
decisions present a pattern: In case after case, outcomes shift the
ground rules of democracy to benefit Republicans and special
interests. The special interest assault on the courts and the
undermining
9
of American voting rights are interconnected. Indeed, the same
groups supporting Republican judicial nominations have now turned
their attention and money directly to suppressing the vote in the
2020 election.
The apparatus used to capture the Court is outlined in greater
detail in the Senate Democrats’ Captured Courts report47 in which
Senate Democrats documented a $250 million dark- money
judicial-influence machine, comprised of multiple groups, and run
by Leonard Leo.48 Leo recently left his position as Federalist
Society Executive Vice President (though he still remains
co-chairman of its board) to found CRC Advisors, where he has vowed
to spend at least $10 million in political advocacy around judges
in the 2020 election cycle.49 The powerful groups and individuals
in Leo’s Court-packing network — which also worked to bring us
Citizens United, Shelby County, and other Republican-friendly Court
decisions — are now out to suppress the vote in the 2020 election.
These are just a few examples of these front groups:
Honest Elections Project The Honest Elections Project describes
itself as “a nonpartisan group devoted to supporting the right of
every lawful voter to participate in free and honest elections.”50
In reality, it does just the opposite, seeking to make voting as
hard as possible, especially for people who tend to vote
Democratic. Its efforts to date include a six- figure ad campaign
opposing vote-by-mail,51 a lawsuit against the state of Michigan to
compel it to purge voters from its rolls,52 and amicus curiae
briefs opposing accommodations to make voting more accessible in
light of the ongoing COVID-19 pandemic.53 The Honest Elections
Project claims to be a new, nonpartisan entity. But documents
reviewed by reporters from OpenSecrets and The Guardian indicate it
is not new at all. It “is just a legal alias for the Judicial
Education Project,” a preexisting group that received “more than 99
percent of [its] funding” for 2018 “from a single $7.8 million
[anonymous] donation from DonorsTrust,” the Koch network’s
dark-money vehicle.54 At the heart of this operation is the
Federalist Society’s Leonard Leo, who plays an outsized role in
President Trump’s judicial selection process.
Judicial Watch Founded in 1994, Judicial Watch is a 501(c)(3)
nonprofit that describes itself as a “conservative, non-partisan
educational foundation.”55 In recent years, Judicial Watch has been
a key player in litigation over “voter purges,” in which state
governments remove thousands of inactive voters from their rolls,
often without those voters’
10
Leonard Leo The Federalist Society
knowledge or consent. Early in 2020, following the Husted decision
described above, it sent legal notices to several populous counties
and states, threatening to sue if those jurisdictions didn’t act
within 90 days to carry out voter purges.56 The group’s president
made false claims online about counts of registered voters in the
run-up to the 2020 Iowa caucuses – leading even Iowa’s Republican
Secretary of State to describe Judicial Watch’s numbers as
“#FakeNews.”57 Though Judicial Watch took in more than $45 million
in 2016 and more than $53 million in 2017,58 it is not obligated to
disclose its donors. The sources of its funding remain largely
unknown. It received at least $8.7 million from the Scaife
Foundations – which are major benefactors of the Federalist Society
and other right-wing groups – between 1997 and 2010.59 It has also
received anonymous contributions from DonorsTrust, including about
$100,000 between 2009 and 2014, and at least $15,000 in 2017.60 As
described in Captured Courts, DonorsTrust is the Koch-linked “donor
advised fund” known as the “dark- money ATM of the conservative
movement.”61
True the Vote True the Vote was founded in 2010 by Catherine
Engelbrecht, who also started the Tea Party group King Street
Patriots. From its outset, the group’s primary goal has been to
recruit military veterans to serve as “poll watchers,” whose task
of finding “suspicious” activity is often focused on voters and
neighborhoods of color.62 They have recently retained Jim Bopp, the
Republican campaign finance attorney who represented Citizens
United, to file lawsuits challenging states’ efforts to expand
absentee voting and vote-by-mail in light of the COVID-19 pandemic.
Though its finances are largely unknown, we know that of the
millions of dollars True the Vote has received since 2013, at least
$150,000 came anonymized through DonorsTrust.63 Other right-wing
interests and foundations have made sizable contributions to True
the Vote as well, including the Bradley Foundation (at least
$50,000) and the bloc of think tanks known as the State Policy
Network (at least $40,000).64
Project Veritas Founded in 2010 by James O’Keefe, Project Veritas
records “sting” videos, in which its operatives go undercover and
attempt to obtain footage damaging to Democratic officials and
liberal groups. Though substantial evidence indicates that Project
Veritas videos are often staged and/or deceptively edited,65
legislators in states like Mississippi have cited its videos to
justify enacting strict Voter ID laws.66 Project Veritas began
infiltrating voter registration and election assistance groups in
late 2019, with plans to release staged footage of “ballot
harvesting” and other alleged misdeeds in the lead-up to this
fall’s presidential election.67
11
How Trump’s Judiciary Is Continuing the Assault on Democracy
President Trump has appointed a number of unfit nominees to
lifetime federal judgeships who often hold extreme ideological
views on issues ranging from abortion to LGBTQ+ rights. As outlined
below, many of Trump’s judicial nominees also have shown a
demonstrated hostility to free and fair elections, including by
seeking to erase any distinction between individuals and
corporations, and between money and speech. They have even made it
easier for foreign governments to interfere in our elections
through unlimited dark-money spending. At the same time, they have
been reliable votes to allow GOP-driven voter suppression in the
states.
Brett Kavanaugh (U.S. Supreme Court) While on the D.C. Circuit,
then-Judge Kavanaugh created an opening for foreign nationals to
interfere in U.S. elections with dark money-funded “issue ads,”68
went out of his way to loosen campaign finance restrictions,69 and
stated that money “absolutely” is the equivalent of speech.70 He
authored an opinion upholding a South Carolina voter ID law against
a challenge that the law violated the VRA, notably refusing to join
a concurring opinion that emphasized the importance of the
VRA.71
Since joining the Supreme Court, Kavanaugh has proven to be a
reliable vote for anti-democracy interests, upholding stringent
state voting restrictions, endorsing Florida’s poll tax for
formerly incarcerated voters, and giving his blessing to extreme
partisan gerrymandering.
Neil Gorsuch (U.S. Supreme Court)
While on the Tenth Circuit, then-Judge Gorsuch went out of his way
to question Supreme Court precedent, suggesting that limits on
campaign contributions should be subject to the strictest level of
scrutiny, which would make it easier to strike down such limits.72
Once on the Supreme Court, Justice Gorsuch joined Justice Thomas as
the only two justices who voted to hear a challenge to the
McCain-Feingold law’s ban
12
on unlimited “soft money” contributions.73
On the Supreme Court, Gorsuch has provided a decisive fifth vote
for special interests in critical voting rights and democracy
cases, including Husted (voter purges), Abbott v. Perez (racial
gerrymandering), and Rucho (partisan gerrymandering).
Greg Katsas (D.C. Circuit) Judge Greg Katsas authored an opinion
arguing that limits on political contributions are unconstitutional
if the contribution is a bequest upon a person’s death, even if in
exchange for favors that benefit the donor’s friends, family, and
affiliated interests.74
James Ho (Fifth Circuit, Texas) In a 1997 article, James Ho argued
that “we must reverse course and abolish all restrictions on
campaign finance,” and that “[p]artial regulation leads inevitably
to complete regulation.”75 Once on the Fifth Circuit, Judge Ho
authored a dissent harshly attacking Supreme Court precedent and
arguing that all limits on campaign contributions are
unconstitutional.76 Judge Ho wrote that “many Americans of good
faith bemoan the amount of money spent on campaign contributions
and political speech. But if you don’t like big money in politics,
then you should oppose big government in our lives. . . . [I]f
there is too much money in politics, it’s because there’s too much
government.”77 This year, dissenting in a redistricting case, Ho
tried to reverse a lower court decision in order to give white
voters another chance to prove that a 2011 redistricting plan in
Dallas County, Texas, racially discriminated against them and hurt
their ability to elect their chosen candidates.
John Bush (Sixth Circuit, Kentucky) Before his nomination, John
Bush suggested that there should be “more money, not less” in
politics78 and that public financing of campaigns is
unconstitutional.79 In extensive and often inflammatory blog posts,
Bush signaled his allegiance to the Republican Party, issuing a
call to “roll with Trump” in 2016.
Donald Trump and Neil Gorsuch, The Atlantic
John Bush The Federalist Society
This May, Judge Bush cast the deciding vote to stay a district
court order easing state ballot restrictions for the COVID-19
pandemic.80 The result – as the dissent argued – was to harm the
“candidates’ right to associate” and run for office, as well as
“the rights of voters to cast their votes effectively.”
Amul Thapar (Sixth Circuit, Kentucky) While on the district court,
Judge Thapar was reversed by the Sixth Circuit after ruling that
Kentucky’s campaign finance laws for judicial elections were
unconstitutional.81
Lawrence VanDyke (Ninth Circuit, Nevada) Before his nomination to
the federal bench, Lawrence VanDyke ran for a seat on the Montana
Supreme Court. His campaign was funded by $170,000 from the Koch
brothers.82 During his campaign, VanDyke argued that dark money
poses less danger of a conflict of interest because candidates
won’t know who spent money to help them.83 President Trump recently
added VanDyke to his Supreme Court short list, even though the
American Bar Association deemed him “not qualified” for his circuit
court appointment after colleagues described VanDyke as “arrogant,”
“lazy,” and an “ideologue.”84
Kyle Duncan (Fifth Circuit, Louisiana) Kyle Duncan defended a
series of restrictive voting regulations implemented by North
Carolina the day after the Supreme Court’s ruling in Shelby County.
These included: a strict voter ID requirement; a reduction in the
early-voting period from 17 to 10 days; a ban on casting
provisional ballots for out-of-precinct voting; a ban on pre-voter
registrations of 16-year-olds; and the complete elimination of
same-day voter registration.85 The Fourth Circuit struck down the
North Carolina law, concluding it “target[ed] African Americans
with almost surgical precision.”86 In an appeal to the Supreme
Court, Duncan argued that the Fourth Circuit’s decision was “an
affront to North Carolina’s citizens and their elected
representatives.”87
Kyle Duncan, New York Times
Eric Murphy (Sixth Circuit, Ohio) As Ohio’s State Solicitor, Eric
Murphy led efforts to defend Ohio’s voter purge process in Husted,
described above. Murphy claimed that Ohio’s process did not violate
the National Voter Registration Act because the voter’s failure to
respond to the confirmation notice disrupted any proximate cause
connection between not voting and being removed from the voter
rolls.88
Cory Wilson (Fifth Circuit, Mississippi) Cory Wilson criticized the
Obama Justice Department for sending observers to his state to
prevent “voter suppression” – which he put in quotations to signal
his skepticism of its existence. “Given that all the poll workers
were African-American,” he wrote, “it was unclear who the feds
thought was doing any intimidating. [The government] might spend
less time chasing agendas that aren’t there, and more time
investigating . . . voter fraud . . . .”89 In a separate op-ed,
Wilson described “voter suppression” as “as phony as the ‘war on
women.’”90
Barbara Lagoa (Eleventh Circuit, Florida) As a member of the U.S.
Court of Appeals for the Eleventh Circuit, Barbara Lagoa voted to
allow Florida to impose a discriminatory poll tax on voters with
felony convictions, defying the will of Floridians who voted
overwhelmingly to allow these citizens to vote.91 In participating
in that decision, she failed to honor her previous commitment to
recuse from cases she had previously been involved in as a Florida
Supreme Court Justice.92 As the Washington Post recently explained,
“[t]he voting rights issue was one Lagoa had been vocal about while
on Florida’s high court, repeatedly challenging the arguments made
by attorneys for former inmates, who could become a sizable voting
pool in a state with a history of close presidential
contests.”93
Some seeking judgeships now appear to be signaling to the donors
influential in selecting nominees that they will be
anti-transparent in campaign finance disclosure, permissive of
voter-suppression laws in election rulings, and pro-money in
politics. At least three Trump nominees authored or assisted amicus
briefs submitted in Shelby County itself, all in favor of gutting
the Voting Rights Act:
Andrew Brasher (Eleventh Circuit, Alabama) Andrew Brasher argued
that despite Alabama’s history of disenfranchising African-
American voters, the Voting Rights Act was “not fair” and burdened
the state.94
Barbara Lagoa Florida Supreme Court
Britt Grant (Eleventh Circuit, Georgia) In an amicus brief urging
the Supreme Court to strike down Section 5 of the Voting Rights
Act, Britt Grant argued that “significant evidence of voting
discrimination in the southern States” no longer existed and that
the law “applies arbitrarily.”95
Andy Oldham (Fifth Circuit, Texas) Andy Oldham argued that “the
preclearance requirement [had] become[ ] a weapon for DOJ to
prevent or delay the implementation of voter-identification laws,”
which he called “an intolerable burden to impose.”96
Amy Coney Barrett History is unlikely to cast a kind eye upon the
circumstances of Amy Coney Barrett’s nomination. President Trump’s
and Senate Republicans’ decision to rush her confirmation while an
election is underway and during a pandemic is a raw exercise in
political power to benefit the special interests that drive the
Republican Party’s agenda.
It does not bode well for democracy. President Trump and Senate
Republican leaders are already sowing seeds of distrust and doubt
in our election, and casting the Supreme Court, not the voters, as
having the final say in who will be our next President. “I’m
counting on [the Court] to look at
the ballots” said President Trump at a recent Presidential
debate.97 And he is counting on Senate Republicans to install his
hand-picked nominee to be part of that decision.
Judge Barrett isn’t new to election controversies. She was part of
the team that represented George W. Bush in Bush v. Gore, where a
5-4 majority on the Supreme Court intervened in a state election
recount to hand the election to Bush.98 As a judge, she authored
the majority opinion in Acevedo v. Cook County Officers Electoral
Board, holding that a candidate for County sheriff’s First and
Fourteenth Amendment rights did not outweigh the state’s interest
in creating a high bar for signature requirements for candidates
looking to get on ballots.99
If Amy Coney Barrett is confirmed, the evidence suggests the
Supreme Court’s steady attack on the procedural guarantees for free
and fair elections will continue.
Amy Coney Barrett The Federalist Society
16
What to Expect, and What’s at Stake Courts will not protect voters
when their rights are under attack. Trump-appointed and other
Republican-appointed judges have had a profound impact on the right
to vote. Consider the experience of Ellie Bradish, a Wisconsin
voter seeking to cast a ballot in the midst of the COVID-19
pandemic. As detailed in the Washington Post, Bradish and her
husband never received their absentee ballots, “tried to vote at a
drive-through site” where “the wait was two hours long,” and
finally voted “in person despite fears of coronavirus
infection.”100 Bradish explained, “We decided to risk our lives to
come vote. . . . I feel like I’m voting for my neighbor, all the
people who don’t have the luxury to wait this long.”101
At that time, states did not have adequate knowledge or the
protective equipment to reconfigure polling places to protect
voters and poll workers from the deadly virus. In the end,
thousands of Wisconsin voters like Bradish were forced to risk
exposure to the COVID-19 virus to exercise their right to vote,
after the Supreme Court, in a 5-4 decision authored by Republican
appointees, refused to allow Wisconsin to extend its voting
deadlines so people could vote safely.102 As Justice Ginsburg wrote
in her dissent, Wisconsin voters “will [either] have to brave the
polls, endangering their own and others’ safety. Or they will lose
their right to vote, through no fault of their own.”103 “That,” she
continued, “is a matter of utmost importance – to the
constitutional rights of Wisconsin’s citizens, the integrity of the
State’s election process, and in this most extraordinary time, the
health of the Nation.”104
As problems have mounted in this election year, the GOP has
escalated its war against democratic participation. Trump’s
reelection campaign and the Republican National Committee have
doubled their litigation budget to more than $20 million for voting
rights lawsuits.105
Meanwhile, as the pandemic continued to rage throughout the
country, the same 5-4 partisan Supreme Court majority blocked a
trial judge’s order that would have made it easier for voters in
three Alabama counties to use absentee ballots in that state’s
primary election.106 The 5-4 Wisconsin and 5-4 Alabama rulings
continued a troubling and longstanding pattern of partisan rulings
by the Supreme Court in recent voting rights cases.
17
When Republican-appointed justices refuse to protect voting rights
even during this unprecedented public health crisis, it sends a
powerful signal about this political goal. The pattern is clear: In
every significant case pitting Americans’ fundamental right to vote
against GOP voter suppression, the five Republican appointees on
the Supreme Court have come down in favor of voter suppression. And
the pattern tells us that Americans preparing to vote in this
fall’s historic presidential election, concerned for their health
and safety amid a worsening pandemic, can expect that a five-vote
majority of the Court will continue to decide in favor of GOP
electoral advantage over voter rights.
More and more special interest money will flood into our elections,
drowning out the voices of voters and increasing political
corruption. By allowing unlimited election spending, the
Republican-appointed Supreme Court majority has tipped the
political scale in favor of corporations and special interests and
against the general public.
Super PACs are able to raise and spend unlimited amounts of money
in elections and are overtaking the campaign finance system.
Through this mechanism, a small number of big donors wield vastly
disproportionate influence. Super PACs have received approximately
$6 billion in contributions since 2010. Eleven donors contributed
more than $1 billion of those funds.107 Once unheard of, this form
of influence has become the new normal.
Such “independent” groups are increasingly outraising even the
candidates themselves. During the 2020 election cycle, with the
election nearly a month away, Super PACs have already raised more
than $1.3 billion.108
These groups have outspent the candidates in 126 congressional
races since 2010,109 including in 28 races in 2018.110 In the most
competitive races, outside money typically outstrips candidate
spending. For example, an examination of spending from 2000 to 2006
found that candidates spent more in the top ten most expensive
Senate races in every single race. By 2014, after Citizens United,
it had flipped. Outside groups topped candidate spending in seven
of the top ten races – and in those races, the groups spent an
average of 80% more than the candidates.111 The predicates of
18
“transparency” and “independence” upon which Citizens United stood
have been made a mockery. According to the Citizens United majority
opinion, these predicates are supposed to be our bulwark of
protection against corruption of our government. Yet during more
than a decade of their repeated violations, the Court majority has
made no effort to reconsider their validity.
Even our existing campaign finance laws are at risk. A number of
Trump appointees to the bench have embraced the concept of money
equaling political speech. Before their nominations, many argued,
sometimes in legal opinions and sometimes in written articles, that
campaign finance laws should be overturned or abolished. On the
bench, some have gone out of their way to write opinions that would
do just that.
Many of these judges were supported by the conservative legal
movement that continues to advance extreme legal theories in courts
around the country. In a group of cases out of California now on
appeal to the Supreme Court, a dark-money group is urging the Court
to give strict First Amendment protections to donations made to
not-for-profit organizations.112 Scores of donors, including the
same groups behind Citizens United and Shelby County, have rallied
behind this case to argue that no one – not the public, not the
press, not Congress – has a right to inquire who funds their
efforts. Should these interests once again prevail, America’s
democracy – already gradually undermined by this captured Court –
will become weaker still.
19
Conclusion We have a duty to ensure that our judicial and political
systems work for all Americans. For our system to work, people must
have confidence in their ability to be heard by political leaders.
Our current campaign finance system allows special interests and
foreign actors to exploit loopholes at the expense of the American
people. And it lets dark money drown out the voices of everyday
Americans. As a result, many have lost trust in government. And it
isn’t just a political problem – the judicial system is complicit
in this loss of confidence. By striking down laws that reduce the
effectiveness of campaign finance regulations, and by allowing
partisan voter suppression of Black and Latino voices to
proliferate, Republican-appointed majorities on the Court have
undermined our system of governance, which rests on the notion that
each voter has an equal say in our democracy. We must do more to
restore people’s trust. It starts with limiting the corrupting
influence of money in our political system and by fighting to
ensure that every American has easy access to the ballot in free
and fair elections.
20
Endnotes 1 R. Sam Garrett and L. Paige Whitaker, Campaign Finance:
Key Policy and Constitutional Issues, CRS (Dec. 3, 2018),
https://www.crs.gov/Reports/IF11034?source=search&guid=9a4eed47b7604248a6e7419b15c9d6bc&index=0.
2 Mission and history, Federal Election Commission,
https://www.fec.gov/about/mission-and-history/ (last visited Sep
14, 2020). 3 Id. 4 Buckley v. Valeo, 424 U.S. 1 (1976) 5 R. Sam
Garrett and L. Paige Whitaker, Campaign Finance: Key Policy and
Constitutional Issues, CRS (Dec. 3, 2018),
https://www.crs.gov/Reports/IF11034?source=search&guid=9a4eed47b7604248a6e7419b15c9d6bc&index=0
6 R. Sam Garrett and L. Paige Whitaker, Campaign Finance: Key
Policy and Constitutional Issues, CRS (Dec. 3, 2018),
https://www.crs.gov/Reports/IF11034?source=search&guid=9a4eed47b7604248a6e7419b15c9d6bc&index=0.
7 Louis Michael Seidman, Can Free Speech Be Progressive Colum. L.
Rev. (2018), https://scholarship.law.george-
town.edu/cgi/viewcontent.cgi?article=3056&context=facpub. 8
Ellen L. Weintraub, Overturn Buckley v. Valeo, Politico (2019),
https://www.politico.com/interactives/2019/how-
to-fix-politics-in-america/corruption/overturn-buckley-valeo/. 9
Id. 10 FAQ on the BCRA and Other New Rules, Federal Election
Commission (Updated Feb. 2005), https://transition.
fec.gov/pages/brochures/bcra_brochure.pdf. 11 R. Sam Garrett, The
State of Campaign Finance Policy: Recent Developments and Issues
for Congress, CRS (Dec. 13, 2018),
https://www.crs.gov/Reports/R41542?source=search&guid=69454b7d4bc747978265da7d85dd8cdc&in-
dex=0#_Toc532569426. 12 Dark Money Basics, OPENSECRETS,
https://www.opensecrets.org/dark-money/basics. 13 Id. 14 Id. 15
Scott Bland, Ryan-Linked Group Raised $24.6M from Anonymous Donor,
POLITICO (May 18, 2018, 4:03 PM),
https://www.politico.com/story/2018/05/18/american-action-network-24-6-million-anonymous-donor-554680.
16 Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449,
449 (2007) (holding that “BCRA’s prohibition on use of corporate
funds to finance ‘electioneering communications’ during
pre-federal-election periods violated corpora- tion’s free speech
rights when applied to its issue-advocacy advertisements”). 17
Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) (holding that
BCRA’s spending threshold and disclosure requirements violated the
First Amendment). 18 McCutcheon v. Fed. Election Comm’n, 572 U.S.
185, 218 (2014) (holding that aggregate limits on donors’ total
contributions to political candidates and committees violated the
First Amendment). 19 See McConnell v. Fed. Election Comm’n, 540
U.S. 93, 132 (2003) (“In BCRA, Congress enacted many of the [Senate
Government Affairs] committee’s proposed reforms. BCRA’s central
provisions are designed to address Con- gress’[s] concerns about
the increasing use of soft money and issue advertising to influence
federal elections.”). 20 Am. Tradition P’ship v. Bullock, 567 U.S.
516, 516 (2012) (holding that a state law providing that a
“corporation may not make . . . an expenditure in connection with a
candidate or a political committee that supports or opposes a
candidate or a political party” violates First Amendment political
speech rights); Ariz. Free Enter. Club’s Freedom Club PAC v.
Bennett, 564 U.S. 721 (2011) (holding that the state’s interest in
equalizing electoral funding could not justify the substantial
burden on political speech imposed by a state statute’s matching
funds provision). 21 U.S. CONST. amend. XV, § 2. 22 Voting Rights
Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended
at 52 U.S.C. § 10301 et seq.). 23 Voting Rights Act Reauthorization
and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577. 24
Id. 25 Andrew Cohen, After 50 Years, the Voting Rights Act’s
Biggest Threat: The Supreme Court, ATLANTIC (Feb. 22, 2013),
https://www.theatlantic.com/national/archive/2013/02/after-50-years-the-voting-rights-acts-biggest-threat-the-su-
preme-court/273257. 26 The Voting Rights Act led to a massive
increase in registered Black voters in the South – and a
corresponding increase in Black elected officials (“[b]y the
mid-1980s there were more Black people in public office across the
South than in the rest of the nation combined”). James A. Cobb, The
Voting Rights Act at 50: How It Changed the World, Time (August 6,
2015 9:30 AM EDT),
https://time.com/3985479/voting-rights-act-1965-results/. 27 Shelby
Cty. v. Holder, 570 U.S. 529 (2013). 28 Id. at 590 (Ginsburg, J.,
dissenting). 29 Benjamin Hayes, Racial Gerrymandering: Past Cases
and the Supreme Court’s Upcoming Decision in Bethune- Hill II, CRS
(March 14, 2019), https://fas.org/sgp/crs/misc/LSB10273.pdf. 30
Adam Liptak, Justices Dismiss Appeal in Virginia Racial
Gerrymandering Case, N.Y. Times (June 17, 2019),
https://www.nytimes.com/2019/06/17/us/politics/virginia-racial-gerrymandering-supreme-court.html.
31
https://journals.sagepub.com/doi/abs/10.1177/1532673X9402200301?journalCode=apra